*More than 33 Times Higher Radiation than from High Level Dumps
*More than 20 Times more than from Operating Nuclear Power Reactors
*Depleted Uranium and Reprocessing Waste in “low- level” disposal sites
*Dump operators do Performance Assessments to allow new waste types into existing dumps

New NRC so-called “Low-Level” Nuclear Waste Dump Rules Would Allow More than

33 Times Higher Radiation than High Level Dumps!

And 20 Times more than from Operating Nuclear Power Reactors!

The banner on the webpage of the US Nuclear Regulatory Commission flashes “Protecting People and the Environment.” Critics of the NRC have challenged this claim and the proposed 10 CFR 61 regulation changes substantiate that challenge.

The proposed rule flies in the face of common sense and weakens already-inadequate regulations for licensed disposal of radioactive waste.

The proposed regulations allow more than 33 times higher radioactive releases and exposures from so-called “low-level” radioactive waste dumps than from a high level waste dump formerly proposed at Yucca Mountain. Federal regulations[1] for a high level waste repository allow the site to release radioactivity that would deliver doses of up to15 millirems[2]/year for the first 10,000 years. From 10,000 to 1 million years, the annual dose limit is 100 millirems. The NRC proposed regulations allow 25 during operation but up to and beyond 500 millirems per year from so called “low-level” radioactive waste disposal sites. The proposed rule allows so-called “low-level” nuclear waste disposal sites, after closure, to emit more than 20 times more radioactivity than operating nuclear power reactors[3] under 40 CFR 190.

We oppose the proposed rule and demand that NRC actually enforce its current minimum regulations at existing sites.

The EnergySolutions-operated site in Barnwell, South Carolina which has been leaking for decades, despite a court order against both the company and the agreement state regulator (DHEC), has no plan to stop or prevent future leakage.

The Waste Control Specialists (WCS) waste site was licensed by two out of the three politically- appointed Texas Commission on Environmental Quality (TCEQ) Commissioners, despite the technical review team recommending denial or additional changes needed to protect water. A request by the Sierra Club for a contested case hearing was denied by the TCEQ Commissioners and Sierra Club has appealed to the Texas Supreme Court, arguing that TCEQ denied a legitimate hearing request. Since the license was granted and the site started receiving commercial and federal radioactive waste, WCS has changed the license through a series of amendments. First, they asked for and received an amendment allowing disposal of waste even if water is present in the area. Second, more recently, an amendment (known as Number 26) allows the WCS to increase the amount of waste, lowers financial assurance requirements and adds new waste streams to the site, including Depleted Uranium (DU). This amendment was approved with minimal public input and allows “flexibility” for how DU is to be disposed, including potentially allowing it go into non-containerized units.

The proposed rule makes the existing 10 CFR 61 even worse and makes radioactive waste dumps more dangerous. The current rule does not require isolating the waste for the entire time it is radioactively hazardous but the proposed rule enables increasing the amount, radioactivity and longevity of the waste while removing dose limits “based on technological and economic considerations.”[4] It dubs future populations “intruders” and allows unlimited doses in the future from nuclear waste generated and buried today.

The proposed rule allows private dump-operators to do “black box” calculations to allegedly justify putting whole new kinds and amounts of radioactive wastes to existing waste sites, clearly a conflict of interest—profit for them and not in the interests of the public or environment. It overrules states that have or might set stricter than federal standards for public and environmental protection. NRC appears to be lowering its own federal standards for public and environmental protection and for democratic participation, possibly in order to facilitate weaker standards at one or more existing radioactive waste facilities. At a time when NRC should be enforcing its own administrative and technical regulations, it is weakening them.

Some of the provisions in the proposed rule violate common sense, the Atomic Energy Act, the Low-Level Radioactive Waste Policy Act, the Administrative Procedures Act, the National Environmental Policy Act and the International Declaration of Human Rights. We insist that NRC correct these errors.

Many of our groups have long advocated for better public protection in regulations for nuclear waste disposal, including:

è No waste that lasts longer than the sites are actively monitored, repaired and institutionally controlled (with resources to remediate) should be allowed into a disposal site. We support redefining “radioactive waste” eligible for shallow land burial under 10 CFR 61 and Agreement State regulations to keep long-lasting wastes out of near-surface burial.

10 CFR 61.55 Definitions: The A, B, C, >C waste classifications in 10 CFR 61.55 make assumptions that have never been publicly accepted but have become the norm. We continue to oppose the use of those misleading classifications, thus are more strongly opposed to allowing even more longer lasting and hazardous radionuclides into 10 CFR 61 disposal sites.

For example, there is no level of plutonium that is “safe” or acceptable. Yet Class A waste, supposedly only dangerous for 100 years, the shortest lasting, least concentrated class, includes plutonium, hazardous for a quarter to half million years, up to 10 nanocuries per gram, with no limit on the number of grams. It also includes iodine 129 hazardous for 160 to 320 million years. Clearly adding the proposed DU which decays into more radioactive progeny with a long decay chain has no business in 100 year Class A disposal.

è Define the appropriate class, if there is one, for DU. Initiate plans to consider it as high level waste.

è Make a goal of isolating radioactive waste, not legalizing releases. Do not increase allowable radioactive releases or the projected doses to people during or after the operational period.

Under the existing 10 CFR 61the sites can legally leak into “the general environment in ground water, surface water, air, soil, plants and animals,” an amount calculated to deliver up to 25 millirems to the whole body, 75 millirems to the thyroid and 25 millirems to any other organ of the body of members of the public, annually. By adopting the 10 CFR 20 definitions of radiation dose (doing away with organ dose limits), the proposed rule increases the radioactivity per millirem for many of the radionuclides.

The proposed rule makes this much worse, as it allows not 25 but up to 500 millirems (EDE) or more per year, from a closed site. The unspecified doses are based on technical and economic considerations of the waste site operator. See the proposed 10 CFR § 61.42. 500 millirems/year is an amount that is expected to cause cancer in 1 in 25 exposed[5], clearly an unacceptable risk from closed nuclear waste sites. This is criminal and disgraceful for an agency claiming to protect the public and environment.

The existing radioactive waste sites have historically leaked – some in less than 20 years and well before site closure. One can only hope that institutional controls will exist for 100 years post-closure, keeping in mind that institutional controls are not accompanied by resources to capture or control leaks and releases when they are revealed.

è No Preemption of State Authority; Require States to Regulate as Strictly as NRC -

The proposed rule supersedes the rights and authority of states to set more protective standards for facilities in their boundaries by making the entire 10 CFR 61 Level B Compatibility. As public interest advocates who participated in the setting of state regulations and siting of radioactive disposal sites, we strongly oppose this compatibility designation and support and encourage all state level opposition to this designation.

NRC should drop the proposed requirement that all provisions of the new rules be adopted verbatim, Level B Compatibility, by Agreement States. The ‘Low-Level’ Radioactive Waste Policy Act and its Amendments (PL 99-240) makes states responsible for so-called “low-level” radioactive waste that is generated within their boundaries (although the provision requiring states to take title to the waste if disposal was not provided was overruled by the US Supreme Court in 1992). NRC should not undercut states by preempting their ability to set standards that are more protective than federal requirements. This undercuts states’ ability to be responsive to its citizens and residents.

NRC should retain and expand the ability for states to be more protective, to regulate more strictly than the federal 10 CFR 61 regulations. This was part of the commitment and incentive to encourage and enable states to site new nuclear waste disposal sites. Changing the rules now looks a lot like a broken promise. It is predicted that there will be a need for new waste sites in the decades to come. Reneging on previous commitments and insisting that states adopt the more lax regulations that NRC is proposing will make that more difficult.

Rather than relaxing standards and advocating for more hazardous and long-lasting waste going into waste sites, the US NRC, at minimum, should be enforcing the existing requirements and regulations and holding states to those.

In cases the state or states that are increasing the risks to the public or providing weaker protections that 10 CFR 61 currently allows, NRC should assert its authority to maintain federal standards and require Agreement States to do so. This rulemaking appears to be an effort by NRC to join the lower common denominator, at least with DU, projections of long term doses from closed facilities and possibly other provisions.

è “Below Regulatory Concern-”

deregulates, exempts and releases radioactive waste and materials from radioactive regulatory control. NRC under its 10 CFR 20.2002 process allows radioactive waste, material and sites to be managed without radioactive regulatory controls on a case by case basis. Applications for these exemptions are not easily publicly available thus devoid of necessary options for public input and intervention. We are not aware of public reporting of 10 CFR 61.6 applications and call on NRC to stop treating nuclear waste, property and materials as if not radioactive whether it goes to solid, hazardous or other facilities and especially if it is allowed into the recycling streams or is released for unrestricted or restricted use.

DELETE the added phrase in proposed rule under §61.7 Concepts …“Alternative methods of disposal may be approved on a case-by-case basis as needed under § 61.6.” (Page 9 of the Comparison between Current Rule Language and Rule Language in Proposed Rule, "Low-Level Radioactive Waste Disposal” (80 FR 16082)). The NRC must not forget that the American public and our elected officials have repeatedly rejected the deregulation of nuclear waste. It should not be inserted into this rule which is about licensed radioactive disposal. The proposed rule re-asserts the publicly rejected concept of deregulation and we demand the deletion of this and any provisions that allow for manmade radioactive waste, materials, emissions and practices to be released from radioactive regulatory control. Deregulation, release, exemption, clearance and deminimus are completely unacceptable.

DELETE the existing § 61.6 Exemptions[6] from the regulations. If it is retained, at minimum, CLARIFY that there is must be advance public notice, comment and opportunity for hearing, adjudicatory hearing and intervention, as with other license amendments and changes in regulations. Public notice, comment and opportunity for intervention should be required for any and all exemption, clearance, release of radioactive waste or materials from radioactive regulatory control.

è We oppose increasing the amount and longevity of radioactivity that goes into shallow land burial.

The proposed rule would allow even longer-lasting waste into unlined soil trenches than the current regulations—waste that will be dangerous much longer than the sites will be controlled or monitored. These include:

o Plutonium-239 (240,000 to 480,000 year hazard) and iodine-129 (160 to 320 million year hazard) from nuclear power reactors, are already allowed in set concentrations in dumps that can be institutionally controlled for up to just 100 years. Sierra Club and other public interest and environmental groups have called for limiting the waste that can go into these dumps to that which is hazardous for 100 years or less. Pennsylvania extended the institutional control period so if a facility is opened in that state, the site would be tracked longer than NRC assumes. Rather than consider the public demands for letting only shorter-lasting waste into the burial grounds, NRC is now opening the door to very large amounts of long-lasting waste and waste that gets more radioactive as it decays into other more radioactive materials. We direct that NRC analyze and adopt stricter disposal site requirements, keeping long-lasting waste out of shallow burial sites.

o Uranium, referred to as Depleted Uranium (DU) after much of the uranium-235 is removed to make nuclear power fuel and weapons, because it is “depleted” of that one isotope, is biologically hazardous and radioactive due to all the other uranium isotopes present and the decay products of those isotopes increase in radioactivity over time. Thus DU can deliver increasing doses to the public, giving the peak or highest dose in more than 2 million years. (See http://www.deq.utah.gov/businesses/E/EnSolutions/depleteduranium/ and http://www.healutah.org/campaigns/nuclear-utah/nuclear-waste/ ) We support HEAL Utah, Institute for Energy and Environmental Research’s (IEER) and all other technical comments throughout this entire rulemaking process against allowing DU into shallow land burial sites and opposing its de facto inclusion in Class A with no justifiable, technical analysis. NIRS and IEER challenged the commercial generation of more DU during the licensing of the LES uranium enrichment facility now operating in New Mexico. We continue to hold that DU is not “low-level” waste or Class A, and that there is no safe permanent way to “dispose” or isolate it from the public and the environment. Because of the longevity of the hazard, it must be considered high level radioactive waste, or at least Greater than Class C, unsuitable for shallow land burial. We oppose the default and pretense NRC is making to allow it into shallow land burial where it cannot be isolated for the length of it hazard.

o “Dirty” DU:

So-called Depleted Uranium or DU could have and has had fission products present which exacerbate the health effects even further. Uranium recovered from the reprocessing of highly radioactive irradiated nuclear fuel, became highly radioactive and was sent back through enrichment facilities without notifying or protecting the workers from this deadly additional hazard. The DU generated during that subsequent enrichment processes was contaminated with fission products as well as the heavier transuranic residue that came with the “dirty” uranium. Absolutely no calculations have been done for this rulemaking by NRC nor are there requirements for disposal licensees to include such information in their Performance Assessments. This is a clear example that the process will not protect the public and environment. There is no justification for failing to incorporate this reality into the rulemaking, further discrediting the inadequate assessments of harm this proposed rule presents. We submit as attachments to these comments emails between NIRS and NRC regarding this omission including the actual Washington Post investigative reports on this scandal which resulted in involuntary, uninformed exposures of workers to fission products at enrichment facilities and failure to provide protection. Many other parameters of the Performance Assessments would change with this correction. Accurate inclusion of this “dirty” DU must be required in the assumptions NRC Staff and disposal companies have made about inadvertent intruder doses and the timeframes and amounts of “peak exposure.” There may be several peaks that should be factored.

o High level radioactive waste from reprocessing of irradiated fuel—dubbed “Waste Incidental to Reprocessing” or even other high level waste could theoretically be disposed in shallow land burial grounds. Commercial reprocessing is not happening now and NRC should not change its rules to accommodate reprocessing. In 2002 NRC had to admit that the only commercial reprocessing site in the US, at West Valley, NY, which only operated for 6 years, could not comply with the NRC License Termination Rule (10 CFR 20 subpart E), thus stated that it would require significant “flexibility.” In the intervening years, despite DOE’s successful solidification of the primary extraction liquid into 275 high level radioactive waste “logs” at West Valley and the generation of huge amounts of waste in other waste streams, it is projected to cost roughly $5 Billion to clean up the reprocessing waste and another ~$5 Billion to clean up the commercial “low-level” radioactive burial ground, which operated for about a dozen years, at West Valley. NRC is failing to consider the long term costs of its weakened 10 CFR 61 regulations.

o Other “unique” waste streams never originally intended for such unlined shallow land burial grounds have no business being thrown in the ground at the behest of the profit-making operators of waste sites. We understand that NRC wants to “solve” as many waste problems as it can, but pretending burial will isolate waste, and removing dose limits that could prevent burial are not acceptable. We demand that NRC strengthen the dose limits…make them low enough to protect the reproductive stage of our life cycle from not only cancer but all other radiation-induced negative health effects, including but not limited to teratogenic and genetic.

o Blended waste and Averaging

Since the 1982 rule10 CFR 61 was adopted, NRC decided to only make a waste classification at the point of disposal, to facilitate all sorts of processing, largely done in Tennessee but also in other states including Ohio. This has led to unnecessary transport and routine radioactive releases to the environment around processing facilities.

A disturbing idea is being considered of bringing waste to disposal site and then AVERAGING the amount of radioactivity with the amount of radioactivity already at the site to allow much more radioactivity and higher concentration waste to be buried.

è NRC is not abandoning the A B C and >C concentration tables 10 CFR 61.55 but providing many other methods to comply and apparently leaving it up the waste operator, not the state or the public.

è NRC creates and exacerbates a serious conflict of interest by encouraging and permitting profit-making dump-operators to do their own computer models and projections to allow more radioactive and longer lasting waste into trenches. NRC’s claim that computer- generated “Performance Assessments” can predict a “Safety Case” is false. Increasing hazards does not provide greater protection.

o NRC admitted that it had not considered that some uranium is laced with fission products. As we stated above, some reprocessed uranium was put through uranium enrichment facilities. NRC should be aware of this well documented and publicly disclosed history at Paducah and reflect it and other such historical knowledge. It is not clear if other sites may also have similar wastes, and certainly if the ill-advised prospect of reprocessing is pursued, there will be more.

o NRC admits that Waste Incidental to Reprocessing possibly could go to shallow land burial.

o Greater-that Class-C waste and transuranics above 10 or 100 nanocuries, previously guaranteed NOT to go to these facilities would be allowed.

o Dump operators will make more money; generation of more new waste will be encouraged; the public will not be protected. The NRC, some Agreement state regulators and the waste site operators are making no “safety case” for us, the public.

è NRC’s proposed rule would allow higher amounts of radioactive exposure --higher doses and in some cases, unlimited radiation doses to the public, as mentioned above.

o First, this done by “updating,” using a different way to calculate doses which allows more radioactivity per millirem or unit of dose for many of the radionuclides. Depending on which radionuclides are being considered, there can be different amounts in each new millirem EDE (the ‘updated’ dose units) than in each of the existing millirems in the current rule. Neither of these are ever measured, verified or enforced. They serve to justify allowing more radioactivity in the waste and waste sites. We oppose the adoption into 10 CFR 61 of the 10 CFR 20 (ICRP 26 or 60) methods of dose calculation in all cases that increase radioactivity per millirem, or increase allowable releases and exposures.

o Second, NRC is increasing and allowing unlimited millirems/year. The existing rule limits doses to the public during operations to 25/75/25 millirems per year and does not expressly specify higher amounts post-closure. This would be an enormous relaxation of the standards and must be dropped. NRC opening these sites to DU is a mistake since the radioactivity/radiation levels will rise over time. At one time DU was expected to be part of wastes that should be permanently isolated from our environment like irradiated fuel. NRC should adopt that plan for DU.

è Radiation is more dangerous for females, youth, and threatens the reproductive stage of the human and other life cycles.

The proposed rule ignores the now-known reality that external ionizing radiation causes 50% more cancer and fatal cancer in female adults compared to male adults and 7 times more cancer incidence when the exposure happens in very young females, compared to exposure of adult males.[7] Young males and females are both at higher risk, but half of the global population needs greater protection and NRC dodges this in its role as regulator. This is irresponsible. Juvenile females are not a “subpopulation” they are an inextricable link in the human lifecycle. There is no biological “Reference Man” who did not come from someone who was in this most sensitive age group. NRC continues to unacceptably ignore non-cancer health effects, synergistic effects with other toxic exposures and reproductive effects.

è NRC should not “update” the radiation dose part of this regulation 10 CFR 61 by incorporating its 10 CFR 20 standards because those are less protective than 10 CFR 61 current limits. Any change should “update” the scientific reality that radiation is more harmful than previous assessments identified and reduce allowable releases and exposures.

NRC is failing to protect the reproductive phase of the human lifecycle (and that of all other species as well). We have commented on this in the 10 CFR 20 rulemaking and oppose expanding those failures to protect from radiation into this regulation 10 CFR 61. Radiation is clearly being found to be more harmful every time it is reviewed (rather, each batch of new data shows that regulators have failed repeatedly to honestly report the true hazards of ionizing radiation) yet NRC stubbornly moves to let the radioactive pollution levels rise as it increases allowable concentrations and emissions into air and water and doses to this and future generations. Scientifically, it is unacceptable.

è There is no limit or parameter on the Performance Assessment. Allowing the option of the waste site operator choosing his or her own allowable dose level, means pretty much any kind of waste can go to these sites. This is worsened by the fact that allowable dose limits are used for calculations only, never enforced or verified; It is not scientifically justifiable for NRC to raise the numbers so Performance Assessments and Safety Cases, by those who stand to profit, can be done allowing more dangerous and long lasting wastes into shallow land burial sites.

It is a conflict of interest to allow those who profit from disposal, the waste site owners and or operators, to do essentially “black box” calculations to allow more dangerous nuclear waste into their own facilities. The rule should not have this provision and any provision it does have should have a requirement for public notification, comment, intervention and intervener funding.

è The Emergency Access Clause, Section 6 of the Low Level Radioactive Waste Policy Act, provides that in emergency situations, operating nuclear waste facilities could be required to take waste not normally designated or intended. We have always contended that sites must not be required, forced, or allowed to take wastes for which they were not originally intended or characterized. The proposed regulations could do the exact opposite, provide for any kind of radioactive waste to be accepted. Under the Environmental Protection Agency’s Protective Action Guides, such facilities could be expected to take large amount of waste from emergencies. States should not be forced to accommodate the nuclear industry polluters in this way. It is time for the federal regulators to adopt a role of incentivizing waste reduction, not the opposite.

è Performance Assessments are tools that can easily be used to justify polluting practices and facilities, not just radioactive. They are not practically transparent or reviewable by the public. We support HEAL Utah’s comments on 10 CFR 61 against Performance Assessments.

Performance Assessments are only predictions and especially not trustworthy when carried out by those who stand to profit from the conclusions.

NRC highlights the Performance Assessment proposed for the West Valley nuclear waste site in its 10 CFR 61 Technical Guidance,[8] but the public opposes the Performance Assessment being planned for that site because the Agencies responsible refuse to provide transparency and the public is being denied input on the contractor, real time access to the necessary assumptions, documents, expert declarations, computer programs and codes and resources to hire independent reviewers. The West Valley experience should be a warning for communities and states where other nuclear waste sites are located. The site itself has been estimated to cost $9.7 billion to fully clean up and it threatens to release its contents into the surrounding streams and the Great Lakes. The performance assessment is being carried out to justify leaving waste in rapidly eroding unstable ground.

è Both the current and proposed 10 CFR 61 allow for unlined soil trench burial of radioactive wastes that will inevitably leak out. Both fail to protect the public. The current regulations should be strengthened and the proposed rule which allows higher radiation exposure to the public than operating nuclear reactors or a high level radioactive waste repository should be scrapped.

[1] 40 CFR 197

[2] Millirems are units of dose that cannot be verified or enforced but that are used to justify planned routine releases from nuclear facilities.

[3] EPA 40 CFR 190

[4] Proposed 10 CFR 61.41b allows the dump operator to do a calculation projecting a dose “…level that is supported as reasonably achievable based on technological and economic considerations…”

[5] ** Calculation to be provided

[6] Existing regulation: 10 CFR § 61.6 Exemptions. The Commission may, upon application by any interested person, or upon its own initiative, grant any exemption from the requirements of the regulations in this part as it determines is authorized by law, will not endanger life or property or the common defense and security, and is otherwise in the public interest.